KEHINDE v. FRN (2020)

KEHINDE v. FRN

(2020)LCN/14272(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, June 30, 2020

CA/A/904C/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

GABRIEL OLUSEGUN KEHINDE APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

The law is settled beyond citing of any authority that the burden of proof is constantly on the prosecution, it does not shift and proof is beyond reasonable doubt, See STATE V OBOBOLO (2017) LPELR-48405(SC) where it held:
“In any criminal offence or offences such as the respondent and others had been charged with, the standard remains undiluted as prescribed by our law and orchestrated within the provisions of Section 135 of the Evidence Act, 2011 which I shall quote thus: “135 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 139 of this Act, on the person who assert it, whether the commission of such act is or is not direct in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused”. That prescription being proof beyond reasonable doubt and this Court and other Courts below have again and again stated the implication or meaning thereof and I shall refer to a few of them for clarity. See Mbang v. State (2013) All FWLR (Pt.674) 102; (2003) 7 NWLR (Pt. 1352) 48 and Adekoya v. State (2013) All FWLR (Pt.662) 1632 at 1650, paragraps B-F; (2012) 9NWLR P.68, paras. B-D. In Mbang v. State (supra) at 116, paras B – D, this Court held as follows:- “There can be no doubt that in criminal cases such as in the instant case, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt as settled law implying that unless the prosecution has discharged that onus, he is not entitled to succeed. Mandillas & Karaberies Ltd v. Inspector General of Police (1958) 3 FSC 20 (1958) SCNLR 335. This settled principle of law agrees with the proposition of the law that one who asserts a disputed fact must prove it. It is also settled that there is no onus on the accused in criminal cases to establish his innocence: Ogbewe v. Inspector-General of Police (1958) All NLR 17; (1958) SCNLR 341. This burden on the prosecution does not shift as it rests squarely on the prosecution throughout”. Adekoya v. State (supra) at 1650, it was held thus:- “The fundamental aspect of burden of proof in criminal trial is the presumption of innocence in favour of an accused. It is entrenched in Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 that every person who is charged with criminal offence shall be presumed to be innocent until he is proved guilty”. PER NIMPAR, J.C.A.

THE CRIMINAL OFFENCE OF OBTAINING BY FALSE PRETENCES

The offence of obtaining by false pretences is provided for in Section 1(1) (a); 1 (3) and 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004. The law states as follows:
“Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.
On the counts of obtaining by false presence, the transaction has shown clearly as follow:
1. That there was a pretence.
2. That the pretence emanated from the accused persons including the Appellant.
3. That the pretence was false.
4. That the Appellant knew that it was false.
5. That there was an intention to defraud
6. That the monies obtained from the PW1 was capable of being stolen, and
7. That the Appellant induced the owner of the money to transfer his whole interest in the property (money).
See ONWUDIWE v. FRN (2006) All FWLR (Pt.319) 774 @ 812 to 813 and also ODIAWA v. FRN (2008) All FWLR (Pt.439) 436. PER NIMPAR, J.C.A.

WHETHER OR NOT THE COURT IS DUTY BOUND TO ADDRESS ALL ISSUES PRESENTED TO IT BY PARTIES

The Court is duty bound to address and determine all issue presented to it by the parties, that is a duty which if not fulfilled can amount to breach of fair hearing, see SIFAX (NIG) LTD V MIGFO (NIG) LTD (2018) LPELR-49735(SC) which held thus:
“Of course, it is easy for any Court that is faced with two different issues; which have the same outcome, to resolve one and throw away the other issue, however, Courts are enjoined to pronounce on all the issues raised before it – see Adegbuyi v. All Progressive Congress (APC) (2014) All FWLR (Pt. 720) 1374, (2014) LPELR-SC 24214, wherein Fabiyi JSC, stated- “The Court (i.e. the Court of Appeal) should pronounce on all issues as an intermediate Court. It should not restrict itself to one or more issues, which in its opinion, may dispose of the matter.” See also Brawal Shipping (Nig.) Limited v. F. I. Onwadike Co. Ltd (2000) FWLR (Pt. 23) 1254, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SCNJ 508, wherein Uwaifo JSC, observed as follows- “It is no longer in doubt that this Court demands of, and admonishes the lower Court to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to miscarriage of justice and, certainly, will have that result if the issues not pronounced upon are crucial.” In this case, the Court below did what it had to do pronounce on both issues…” Per AUGIE, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice of the Federal Capital Territory delivered by Hon. Justice A. M. Talba (as he then was) delivered on the 27th day of September, 2017 wherein the Court below found the Appellant guilty and was sentenced to 7 years of imprisonment without option of fine and an order to refund the sum of N5.9 million to one Mr. George Oyetola. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 24/10/2017 setting out 10 Grounds of Appeal.

Facts giving rise to the Appeal are amenable to brief summary. The Appellant was arraigned before the trial Court on a one count charge of intention to defraud by false pretence contrary to Section 1(1) (a) of the Advance Fee Fraud and Other Related Offences Act, 2006. The Appellant pleaded not guilty to the charge and the matter went to trial with the Prosecution called 4 witnesses and tendered EXHIBITS A-Q, a series of documents on the sale of the property in question. The Appellant was allotted a 2 bedroom semi detached house at CITEC Estate through a mortgage finance company and

he first offered it for sale to the PW2 and collected money from him to offset the outstanding payment on the house for free delivery to PW2. When the Appellant failed to deliver the certificate of occupancy, PW2 went to verify from the mortgage company on why the transaction was delayed, and was told the money was not paid to CITEC and the offer will soon lapse. After showing them documents signed by the Appellant and evidence of payments made to the Appellant indicating that the Appellant had divested his interest to the house, he was allowed to complete payment and was handed over the documents. Subsequently, the Appellant approached PW1 and offered to sell the same house to him without refunding the payment made by PW2. PW1 paid him the Appellant 10million Naira but later withdrew the cheque and gave Appellant N6million Naira. After a search it was discovered that PW2 had perfected the transaction between him and the Appellant and PW2 has collected the keys and papers to the House. The second buyer petitioned EFCC who investigated and thus the prosecution, conviction and the Appeal.

The Appellant’s brief settled by ADEWALE I. NATHANIEL, ESQ.,

is dated 21st May, 2018 and filed on the 11/07/2018 but deemed on the 27/4/2020. It distilled 8 issues for determination as follows:
a. Whether the trial Court was right on the conclusion reached against the Appellant on the basis that he believes the evidence of the prosecution witnesses from the totality of the prosecution evidence. (Ground 1).
b. Whether the trial Judge was right when he says “it is without any doubt that all the above ingredients of the offence of obtaining by false pretence has been established by the prosecution, the evidence adduced by the prosecution is cogent and credible”. (Ground 2)
c. Whether the trial Judge is right when he says in his judgment that “I am convinced that prosecution has established its case against the Defendant beyond reasonable doubt and accordingly I convict him as charged” (Ground 7).
d. Whether the trial Court was right on the conclusion reached against the Appellant on the basis that the transactions between him and PW2 (the 1st buyer) could be resolved in the civil pursuit and not in the transaction between him and PW1 (the 2nd buyer) forgetting that the 1st

buyer has lost in the property and refund has been made. What made the difference?( Ground 4).
e. Whether the trial judge was right in his oversight of vital information regarding the sales of the property to PW1 (the 2nd buyer) after PW2 (the buyer) has reneged his interest, demanded for his refund and was settled accordingly before perfecting the title. (Ground 6).
f. Whether the following financial institutions mentioned are all interested parties and whether that fact was looked into at the first instance trial. i.e. Federal Mortgage Bank (FMB), Resort Loans & Saving LTD (PM1) (Ground 7).
g. Whether the trial Judge took into cognizance the dates on cheques payments (refunds) to the PW2 (1st buyer) and its relevance to the date he (1st buyer) perfected the title. (Ground 3).
h. Whether the trial Judge was right in his conclusion reached against the Appellant on the basis of doubt that he believed the Appellant is not a witness of truth at all, therefore have not difficulty in rejecting his evidence. ( Ground 7).

The Respondent’s Brief settled by S. A. UGWUEGBULAM ESQ., it is dated 24th December, 2018, filed on the

18/01/2019 but deemed on the 27/4/2020. The Respondent a sole issue for determination as follows:
Whether the trial Court rightly convicted the Appellant in the light of evidence adduced by the Prosecution.

I have considered the Notice of Appeal, the Record of Appeal and the respective briefs filed by both Learned Counsel and I find that the there are 9 Grounds of Appeal from which 8 issues were distilled for determination in this Appeal. However, it is clear that 3 issues were distilled from Ground 7 alone and these are issues 3, 6, and 8. By so doing, no issue was generated from grounds 4, 6, 8 and 9. A ground of Appeal from which no issue is distilled is deemed abandoned. Consequently, Grounds 4, 6, and 8 are hereby struck out having been abandoned. Also, issues 3, 6 and 8 distilled from Ground 7 are incompetent and must be struck out; see the case of NWANKWO & ORS V YAR’ADUA & ORS (2010) LPELR-2109(SC) where the apex Court said:
“It is clear that learned counsel concedes that he formulated two issues out of a ground of appeal. What he has done – formulation of two or more issues from a ground of appeal – is what the law regards

as proliferation of issues and consequently frowns upon. It is settled law that whereas counsel may formulate an issue out of a ground of appeal or a combination of grounds of appeal, he is not allowed or permitted to formulate more than an issue out of a ground of appeal. The above constitutes the foundation of the objection of Learned Senior Counsel for the 1st and 2nd respondents. I hold the view that the objection is well founded in law. Consequently the objection is sustained and issue No. 3 is hereby struck out for being incompetent. See IBRAHIM V. OJOMO (2004) 4 NWLR (PT. 862) 89 AT 104; IWUOHA V. NIPOST LTD. (2003) 8 NWLR (PT.822) 308 AT 332; SHITTU VS. FASHAWE (2005) 14 NWLR (PT. 946) 671 AT 687 MARK V. EKE (2004) 5 NWLR (PT. 865) 54 AT 81- 82.” PER ONNOGHEN, J.S.C.

Flowing from above, the Court shall adopt the sole issue formulated by the Respondent which encapsulates all the issues formulated by the Appellant. The Appeal being a criminal Appeal seeks to answer one basic question which is whether the Prosecution made out a case against the Appellant to warrant the conviction and sentence. Usually evaluation of evidence is at the root of

Criminal Appeals. In resolving the sole issue aspects questioned by the Appellant shall be considered in the determination of the Appeal particularly the challenge to Jurisdiction.

ISSUE FOR DETERMINATION
Whether the trial Court rightly convicted the Appellant in the light of evidence adduced by the Prosecution.

APPELLANT’S SUBMISSIONS
The Appellant submitted that the burden of proof is on the prosecution to prove every material fact beyond reasonable doubt which never shifts. The prosecution is expected to prove every charge against the Appellant beyond reasonable doubt so as to convict the accused accordingly.

The Appellant states that the nominal complaint or petition was that he failed to deliver the key of the property that he bought from the Appellant and also failed to refund the purchase price of the property which is N6 million deposited on demand. In addressing the Court, the Appellant raised Preliminary Objection on the competency of this suit before the trial Court on the following grounds:
a. That the transaction between the nominal complainant and Appellant is civil in nature
b. That the trial Court lacks

the jurisdiction to hear and determine the suit.
c. That no cause of action has been disclosed against the appellant in this suit.
d. That the action was not initiated by due process of law.

The Appellant submitted that the rule is now well established that a Court is duty bound to express in writing whether it agrees with a Preliminary Objection or not, citing AMGBARE V. SYLVA VOL. 8 E.P.R 764. The Appellant argues that it is trite in law, that to succeed on a charge of intention to defraud by false pretense, the law requires the prosecution to prove the essential element or ingredients of the offence. The Appellant submitted that the prosecution failed to prove in the entire trial before the lower Court. Further, the Appellant states that proof beyond reasonable doubt means establishing the guilt of the accused person with compelling and conclusive evidence, citing OSUAGWU V. THE STATE (2013) 1 SCM, 170. It is also trite that in proving the ingredients or elements of intention to defraud all the ingredients and elements in the case above must be proved simultaneously, proving one and abandoning others cannot found a conviction on false

pretence.

The Appellant states that for the offence of obtaining by false pretence to be committed, the prosecution must prove that the accused had the intention to defraud and the thing is capable of being stolen. He further states that when the Appellant sold the property to PW2, (the first buyer) he was the owner and he also returned the sum of N3.5 Million to him (PW2) when he declined interest. When he sold the same property to PW1 (second buyer) he was still the owner pursuant to the search report conducted by agent to PW1.

The Appellant submitted that in a criminal proceeding, failure to prove the case by the prosecution beyond reasonable doubt will automatically lead to the discharge of the accused, relied on ALMU V. STATE VOL.V N.C.C 238. The Appellant further submitted that the prosecution has failed and/or refused to discharge the burden and that it has not made out a case sufficiently to warrant this conviction and also that the ingredients of the offence upon which the Appellant stood trial at the lower Court were not proved by the prosecution.

Furthermore, the Appellant states that by the time he sold the property to the first buyer

(PW2) he was the owner and he intimated (PW2) that the property is under mortgage and that he bought from CITEC through mortgage agreement. After the first buyer declined the purchase, without the Appellant’s consent and unmindful of the N3.5 million refunded to him, went to CITEC to repurchase the property using the document given to him by the appellant in regard to the same property.

The Appellant submitted that he did not conduct the search himself; neither did he procure CITEC to lie on his behalf in the search report. This missing link in the prosecution case, clearly create a vacuum in proving the ingredients of obtaining money by false pretence. Further, the Appellant submits that if truly the property has been revoked, the documents for the purchase of the property from the Appellant tendered by the PW2 stand void and useless and outright purchase should be for the property.

The Appellant further states that Exhibits tendered before the lower Court showed that EXHIBITS 1, 2, 3 indicates that the property belonged to the Appellant and EXHIBITS T & U also showed that substantial part of the purchase money has been refunded to PW2, EXHIBIT 7,

B, C, & U were earlier in time than EXHIBITS M, N, O that later transferred title to PW1. The Appellant submitted that at refund, the transaction between PW2 and the Appellant stand void.

The Appellant contended that the trial Judge did not evaluate the evidence presented at the trial, that if he had done so, his decision would have been different. It is an elementary principle of law that the function of evaluation of evidence is essentially that of the trial Judge, citing NKEBISI V. STATE VOL. 5 N.C.C

It is the primary duty of the trial Court to ascribe probative value to evidence, where it fails in that duty the appellate Court would be interfering. See ALIYU V.STATE (2013) 12 SCM (Pt 2) 195. The Appellant submitted that throughout the testimonies of PW1, PW2, PW3 & PW4, the ingredients of the offence of fraud or intention to defraud have not been established against the appellant. The Appellant state that it has been established in the record that when the Appellant sold the property to PW2, he the owner had also returned the sum of N3.5 Million to him after he declined his interest on the property.

In continuation of argument, the

Appellant submitted that it is trite in law that in a criminal trial, the onus is on the prosecution to prove its case beyond reasonable doubt otherwise the accused shall be discharged, referred to Section 135 of the Evidence Act. It is also established law that the prosecution is bound to call essential witnesses in proof of its case, citing VICTOR V. STATE (2013) 12 SCM (Pt. 2).

The Appellant submitted that since the trial Court has admitted that the transaction between the Appellant and PW1 is purely contractual which recourse can be in civil action, why couldn’t the transaction between the Appellant and PW2 follow suit.

The Appellant states that the same property was sold to PW1 the petitioner who also declined interest and demanded for refund, the Appellant paid N10,000,000.00 and issued a postdated cheque of N5.9 Million to be cashed within 3 Months which has not lapsed before the matter was charged to Court. The trial Judge taking into cognizance of the earlier N10,000,000.00 paid, in Judgment awarded the sum of N5.9 Million in favour of PW1 as restitution.

Continuing to argue, the Appellant submitted that the transactions are

purely a true and genuine business, a contractual arrangement with no element of fraud of intention of defraud. The Appellant submitted that it falls short and below the responsibility imposed on the trial Court in law and the learned trial Judge failed in his responsibility in this regard. Furthermore, the Appellant submits that a decision of a Court should be certain, unequivocal and clear to what it determines, referred to SULEIMAN V. STATE (2009) 15 NWLR (Pt 1164).

The Appellant states that the element of doubt and uncertainty imputed into the Judgment of the trial Court has the legal effect that when a doubt exists in the mind of Court as to whether an accused committed an offence or not and such doubt should be resolved in favour of the accused.

The Appellant submitted that the impression given by PW2 was that the allocation to the Appellant was revoked and he purchased the property outright from CITEC, this is contradictory to his testimonies in cross-examination and further cross-examination, where he states “when the accused failed to deliver the documents to me, I asked for the refund of money.” The PW3 also testify thus; I am

the executive director of the company. I know the accused person as a prospect for one of our houses. He was also an allottee for one of our houses at CITEC along Jabi/Airport Road, Mbora, Abuja.” In contradiction to the statement of PW2, that the property was billed for revocation, the Appellant submitted that the evidence given by the two witnesses are contradictory, manifestly unreliable and a conspiracy to frustrate and deprive the Appellant of his property.

Where evidence adduced by the prosecution has been so discredited or is so manifestly unreliable, no reasonable tribunal should safely convict on it as held in AKANO V. A-G BENDEL STATE (1988) 2 NWLR (Pt 75) 201.

The Appellant further submitted that the EFCC investigative team failed/or neglected to investigate the following:
1. Whether the property is on mortgage
2. Whether the Appellant is one of the mortgage beneficiary.
3. Whether Appellant has account with Federal Mortgage Bank (FMB) in regards of the mortgage.
4. That if the Appellant has an account with FMB, whether FMB has disbursed the money to Resort Loan & Saving Ltd, who will now credit CITEC.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether Federal Mortgage Bank truly increased the price of the property from the initial selling price, as claimed by PW2 & PW3.
6. Whether the property was truly billed for revocation as claimed by PW2.
7. Whether CITEC has the power to re-sell property under mortgage arrangement directly.
8. Whether there is relationship between the Appellant and Resort Loan & Saving Ltd. The primary mortgage finance (PMF).

The Appellant submitted that the property was on mortgage; the Appellant was one of their mortgage beneficiaries, he has an account with FMB in respect of same. On this note, the Appellant states that EFCC investigation officers did not do their due diligence on the matter. Furthermore, the trial Court failed to direct itself and misdirection on a very material issue in the trial invariably leads to a miscarriage of Justice, referredOPAYEMI V. THE STATE (1985) 2 NWLR (Pt 5) 101 @ 106- 109.

The Appellant states that the invalid deduction which the trial Court made against the Appellant on this very material point or fact in issue influenced the trial Court’s decision. The trial Court had a duty to afford the

Appellant the benefit of the uncontradicted evidence of the DW2, the Appellant. SeeIFEJIRIKA V. THE STATE (1999) 3 NWLR (Pt 593) 59 at 76 – 77.

The Appellant states that after the conclusion of the sales agreement between the Appellant and the nominal complainant, the transfer of the property to him, instead of him PW1 paying the full payment on the property, so that every lien on the property will be settled at once, he withdrew the N10 Million and issued N6 million, leaving a balance of N4 Million, which he refused to pay, it was meant to retrieve the property for him.

The decision of any Court of competent jurisdiction which includes the ruling and Judgment thereto to be valid must contain the reasons for the decision otherwise; it will not pass the test of a valid decision in the eyes of law, citing AGBANELO V. UBN (NIG) LTD (2000) 7 NWLR (Pt 666) 534 at 547.

Finally, the Appellant urges the Court in consistency with the above argument and authorities cited to allow the Appeal and set aside the Judgment of the trial Judge.

RESPONDENT’S SUBMISSIONS
The Respondent contends that the trial Judge rightly convicted the

Appellant in view of the overwhelming evidence adduced by the prosecution. The prosecution proved beyond reasonable doubt the ingredients of the offence of obtaining money by false pretence and referred to the Supreme Court case of ONWUDIWE V. FRN (2006) 10 NWLR (Pt. 988) 382 which listed the ingredients of the offence. From evidence adduced before the trial Court, the following facts are established.
1. The defendant was offered house No. 3, F9 Street CITEC, Mbora District, Abuja which offer he accepted.
2. That in August 2011, he approached PW2 and offered to sell the house to him which offer PW2 accepted.
3. The accused person sold the house to PW2 for N7 million Naira which he paid vide two Skye Bank cheques of four million, five hundred and sixty eight thousand naira made payable to Resort House and Savings Limited and the sum of one million, five hundred thousand naira made payable to the defendant.
4. That the sum of Four Million, Five hundred and sixty Eight Thousand, Five Hundred Naira made payable to Resort House and Savings Limited was meant to offset the mortgage sum and the sum of two million naira was the defendant’s profit out

of which one million, five hundred thousand was paid to the defendant leaving the outstanding balance of five hundred thousand naira which was agreed to be paid when title documents are ready.
5. To this end, the defendant executed 3 documents, a deed of assignment, a letter of consent to assign and letter of authority to collect C of O in favour of PW2.
6. That the defendant having executed a deed of assignment, a letter of consent for assignment and authority to collect C of O in favour of PW2 had divested himself of title to the house and had no proprietary interest in the house again, the fact that he diverted the money meant to offset the mortgage sum notwithstanding.
7. That with full knowledge of this fact, in March 2012, the defendant met PW1 and misrepresented to him that he is the owner of House 3, F9 street, CITEC Mbora and offered to sell same to him for sum of Ten Million Naira which PW1 accepted.
8. On the 23rd day of March 2012, the defendant executed a deed of assignment and power of attorney in favour of PW1.
9. When the defendant was not forthcoming with the keys and documents of the house, PW1 withdrew the diamond

bank cheque of ten million naira and issued another one for 6 Million naira.
10. That up to this point, neither the house nor the sum of six million naira has been handed over PW1.

The existence of the above ingredients was proved beyond reason doubt in the instant case. The prosecution provided cogent, credible and convincing evidence in proof of ingredients highlighted above.

The Respondent states that the findings of the trial Court is neither perverse nor unsubstantiated in view of the uncontradicted testimonies of prosecution witnesses. Finding of facts are made by the Judge. The Judge receives evidence. That is perception. He proceeds to weigh the evidence in the circumstances of the case. That is evaluation of evidence before ascription of value. Since the Appellate Court does not have that advantage of the trial Court, it cannot interfere, citing ISMAIL V. THE STATE (2011) LPELR (9352).

Furthermore, the Respondent submitted that the fraudulent intention of the Appellant can be gleaned from the fact that he executed Exhibit L in favour of PW2 on the 14th day of September 2012. EXHIBIT L is a letter of authority written by the

Appellant authorizing PW2, Elder Johnson Ogunleye to collect Certificate of Occupancy.

The law is trite that findings that are borne out of credible evidence must not be disturbed by an appellant Court and an Appellant Court will not ordinarily with such findings unless they are perverse or not supported by credible evidence. See IBIKUNLE V. THE STATE NCC VOL 2, page 337.

The Respondent states that the Appellant alleged that the Economic and Financial Crimes Commission did not sufficiently investigate the case and as such doubts created by the Appellant is grossly destitute of substance. The Respondent submits that there is no doubt created by the prosecutions to warrant the resolution of the matter in favour of the Appellant. The prosecution sufficiently proved the ingredients of obtaining money by false pretence against the Appellant. If there is any doubt in the prosecution’s case, it is grossly inconsequential and insignificant and does not justify the upholding of this Appeal.

Furthermore, the Respondent submitted that the prosecution proved beyond reasonable doubt the sole count charge of obtaining money by false pretence proffered

against the Appellant.

The Respondent states that through their witnesses, they have proved the vital ingredients of the offence of obtaining money by false pretence and this fact made calling further witnesses unnecessary, relied on CHUKWU V. THE STATE (1992) LPELR 854 (SC). The Appellant states that the agents are not material witnesses and their testimony cannot determine the case one way or the other. A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case as was held in the case of OCHIBA V. THE STATE (2011) LPELR- 8245(SC).

Finally, the Respondent submits that in the light of the overwhelming evidence against the Appellant, we hereby most humbly urge the Court to uphold the Judgment of the trial and dismiss this Appeal for being frivolous and vexatious.

RESOLUTION
The Appellant was arraigned by the Respondent on a charge of receiving by false pretence and the charge reads thus:
“That you, Gabriel Olusegun Kehinde ‘M’ sometime in March 2012 at Abuja, within the judicial division of this Honourable Court

with intent to defraud did obtain the sum of six Million naira (6,000,000.00) from one Oyetola George under the false pretence of selling a two bedroom semi-detached bungalow at No. B3, F9 street Citec Estate Mbora Abuja which you knew to be false and thereby committed an offence contrary to Section 1(1)(a) of the Advance Fee fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.”

is, subject to the provisions of Section 139 of this Act, on the person who assert it, whether the commission of such act is or is not direct in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused”. That prescription being proof beyond reasonable doubt and this Court and other Courts below have again and again stated the implication or meaning thereof and I shall refer to a few of them for clarity. See Mbang v. State (2013) All FWLR (Pt.674) 102; (2003) 7 NWLR (Pt. 1352) 48 and Adekoya v. State (2013) All FWLR (Pt.662) 1632 at 1650, paragraps B-F; (2012) 9NWLR P.68, paras. B-D. In Mbang v. State (supra) at 116, paras B – D, this Court held as follows:- “There can be no doubt that in criminal cases such as in the instant case, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt as settled law implying that unless the prosecution has discharged that onus, he is not entitled to succeed. Mandillas & Karaberies Ltd v. Inspector General of Police (1958) 3 FSC 20 (1958) SCNLR 335. This settled principle of

law agrees with the proposition of the law that one who asserts a disputed fact must prove it. It is also settled that there is no onus on the accused in criminal cases to establish his innocence: Ogbewe v. Inspector-General of Police (1958) All NLR 17; (1958) SCNLR 341. This burden on the prosecution does not shift as it rests squarely on the prosecution throughout”. Adekoya v. State (supra) at 1650, it was held thus:- “The fundamental aspect of burden of proof in criminal trial is the presumption of innocence in favour of an accused. It is entrenched in Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 that every person who is charged with criminal offence shall be presumed to be innocent until he is proved guilty”. The Evidence Act, Section 138 (1) Laws of the Federation, 2004, however stipulates that: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt”. Under our criminal law, it is not the duty of an accused to prove his innocence. The standard of proof in a criminal trial is proof beyond reasonable doubt which demands

that it is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused with the offence. The consequences of presumption of innocence in favour of an accused person is that the burden placed on the prosecution to prove the guilt of an accused person beyond reasonable doubt must be satisfied. Any slightest doubt raised by an accused person shall lead the Court to resolve this doubt in favour of an accused.” On whom the duty lay for this proof, this Court in Ugwanyi v. FRN (2013) ALL FWLR (Pt. 662) 1655 at 1664, paras B-D; (2012) 8 NWLR (Pt. 1302) 384 at 399, paras. B held thus:- “By the provisions of Section 138, Evidence Act, proof beyond reasonable doubt does not mean proof beyond all about, or shadow of doubt. It simply means the prosecution establishing the guilt of the accused the person with compelling and conclusive evidence. The law will fail to protect the community if admitted of fanciful possibility to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can dismissed with the

sentence of course, it is possible, but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”Per PETER-ODILI, J.S.C.

The burden on the prosecution is to prove all the ingredients of the offence and the obtaining by false pretence has been described as follows:
“I move to the offence of false pretences. It means knowingly obtaining another person’s property by means of a misrepresentation of fact with intent to defraud. See Bryan A. Gamer, A Dictionary of Modem Legal Usage, Second Edition, page 348. Section 419 of the Criminal Code provides for the offence of obtaining by false pretences. The section provides in part: “Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years.”Per TOBI, J.S.C (of blessed memory)
The offence of obtaining by false pretences is provided for in Section 1(1) (a); 1 (3) and 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004

. The law states as follows:
“Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.
On the counts of obtaining by false presence, the transaction has shown clearly as follow:
1. That there was a pretence.
2. That the pretence emanated from the accused persons including the Appellant.
3. That the pretence was false.
4. That the Appellant knew that it was false.
5. That there was an intention to defraud
6. That the monies obtained from the PW1 was capable of being stolen, and
7. That the Appellant induced the owner of the money to transfer his whole interest in the property (money).
See ONWUDIWE v. FRN (2006) All FWLR

(Pt.319) 774 @ 812 to 813 and also ODIAWA v. FRN (2008) All FWLR (Pt.439) 436. It should be reiterated, that the offence of obtaining property by false pretences could be committed in writing, or even by mere oral communication of the accused person. The ingredients for the offence of obtaining by false pretences must be proved conjunctively and not disjunctively. However, an honest belief in the truth of the statement on the part of the accused person, which turns out to be false, cannot found a conviction on false pretence. Where convincing proof of any of the ingredients is absent, the charge cannot be said to have been proven beyond reasonable doubt.

In this Appeal, the prosecution called 4 witnesses and tendered Exhibits. The facts are simple and straight forward and as summarized above. The Appellant after collecting money from PW2 and signing 3 important documents in favour of PW2, these are a deed of assignment, a letter of consent to assign and letter of authority to collect Certificate of Occupancy in favour of PW2. He was paid the purchase price in draft and other sums to also allow him offset the outstanding balance on the property under the

mortgage arrangement. He did not. Subsequently, he approached PW1, sold the same house to him, initially collected the full price of N10 Million but PW1 withdrew the cheque and split the payments. The Appellant did not disclose his earlier arrangement with PW2. Furthermore, he failed to pay the mortgage company. Initially PW1’s agent conducted a search and found out that the house was still in the name of the Appellant, but later discovered that the house was sold by the Appellant before he was approached. Therefore, by the time PW1 paid money to the Appellant, he had nothing to sell. Placing the facts against the ingredients of the offence as done by the trial Judge, it is crystal clear that all the elements of the offence of obtaining by false pretence were made out. The Appellant having sold and issued relevant documents to PW2 knew that he had willing surrendered his interest in the property to PW2. If he wanted to revoke the arrangement, he should have done so properly by putting PW2 on Notice. He did not, only for him to approach another innocent buyer and offered the same property, collected some money and failed to transmit the money to the

mortgage company if he truly believed that he still had interest in the property and to enable him perfect the sale. He collected money from both PW1 and PW2 in the guise of paying over to Mortgage company, but failed to do so on both occasions. He knew that the papers signed and given to PW2 were still with PW2 and he had not refunded the money collected from PW2. He did not tell PW1 about the earlier transaction. The offence is more in respect of the attempted sale to PW1 at the time he knew that the arrangement with PW2 was still in existence. He made PW1 to part with money which is property which is capable of being stolen, there was a pretence which was false and the Appellant knew so but did that with the intention to defraud because he knew of the previous arrangement but induced PW1 to still transfer money to him. I also find that the offence of obtaining by false pretence was established.

The Appellant had challenged the jurisdiction of the trial Court on several grounds by way of preliminary objection:
a. That the transaction between the nominal complainant and Appellant is civil in nature.
b. That the trial Court lacks the

jurisdiction to hear and determine the suit.
c. That no cause of action has been disclosed against the appellant in this suit.
d. That the action was not initiated by due process of law.
Jurisdiction is very important to every adjudication and that has been settled in plethora of decisions, one of such is GARBA V MOHAMMED (2016) LPELR-40612(SC) which held:
“There is no doubt that the issue of jurisdiction is fundamental to adjudication. It is the blood that gives life to the Court and enables it exercise its powers as conferred by the law establishing it. Without jurisdiction the proceedings and any decision reached therein is null and void ab initio. See: Kalio v. Daniel (1975) 2 SC 15; AG Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Oloriode v. Oyebi (1984) 1 SCNLR 390; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. This underscores the importance of the issue under consideration. It is especially important in a pre-election or post-election matter where not only the litigants but also the electorate are affected by the outcome of the dispute and it is desirable that the case be determined with dispatch.” Per KEKERE-EKUN, J.S.C

The grounds listed by the appellant above are very strange and a clear misunderstanding of the law of criminal law. For a start, the trial was a typical Criminal prosecution and not a civil claim. The charge was reproduced earlier in this judgment and appellant was arraigned under the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2006. Under the said legislation, Section 14 provides for the Courts bestowed with jurisdiction to try cases under the Act, it states:
“14. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.”
The section was interpreted in the case of OBIORAH V FRN (2016) LPELR-40965(CA) as follows:
And for the purposes of this matter, undisputably, the National Assembly had the power as it did in enacting the Advance Fee Fraud and other Fraud Related Offences Act, 2006. Sections 14 and 19 of the said Act, empowered the Court below, the State High Courts and the Federal Capital Territory High Court, to try the offences created under the Act.

That means that the jurisdiction of the Court below, to try criminal causes and matters under Section 251(1) of the Constitution, was expanded or enhanced by the National Assembly, in order for the said Court to try the offences created under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. Therefore, by virtue of Sections 14 and 19 of the Act, 2006, both the Federal, State and Federal Capital Territory High Courts have co-ordinate jurisdiction to try the criminal offences created under the same Act. Hence, cases such as Amadi v. Federal Republic of Nigeria (2008) 18 NWLR (pt. 119) 259; George v. Federal Republic of Nigeria (2011) 10 NWLR (Pt.1254) 1, were tried at the Lagos State High Court, Peter Nnamuchi v. The State (2015) 6 C.A.R. 388 was tried at the Anambra State High Court, on a charge of obtaining property by false pretences, at the instance of the Anambra State Police Command whilst Onyie Ifeanyi v. Federal Republic of Nigeria (2015) 3 C. A. R. 20 was tried at the Federal High Court, Enugu on charges of obtaining property by false pretences, at the instance of the Economic and Financial Crimes Commission.” Per YAKUBU, J.C.A (of blessed memory).

The recent Supreme Court case of NWEKE V FRN (2019) LPELR-46946(SC) per OKORO, JSC explained the extensive nature of the provisions of the Advance Fee Fraud Act and how it can affect a wide range of economic activities which may be contractual in general, it held thus:
“In consequence thereof, the National Assembly enacted the Advance Fee Fraud and other Fraud Related Offences Act 2006 wherein by Section 14 thereof, jurisdiction to try offences and impose penalties under the said Act is vested in the Federal High Court, the High Court of a State and the High Court of the Federal Capital Territory… I must state that the law is well established that interpretation of statutes should always be given its ordinary meaning. Where the words of a statute are clear and unambiguous, any addition or subtraction will be tantamount to introducing illegal back door legislation or amendment. See Skye Bank Plc v Victor Anaemem Iwu (2017) LPELR – 42595 (SC), Elabanjo & Anor v Dawodu (2006) 15 NWLR (pt 1001) 76. For the avoidance of doubt, let me reproduce Section 14 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 as follows:

-“14. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.” There is no doubt as to the intention of the legislature that all matters emanating from the said Act shall be ventilated at the Federal High Court, High Court or the High Court of the Federal Capital Territory and the High Court of the State. In other words, the three Courts have concurrent jurisdiction… Let us go to the Act setting up the EFCC to find out their functions and limitations. The functions and powers of the commission are prescribed in Sections 6 and 7 of the EFCC (Establishment) Act, 2004. I shall reproduce the two sections as follows: 6. The Commission shall be responsible for: – (a) “The enforcement and the administration of the provisions of this Act. (b) The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instrument, computer credit card fraud, futures market fraud, contract scam, etc; (c) The co-ordination and

enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority; (d) The adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime offences or the properties the value of which corresponds to such proceeds; (e) The adoption of measures to eradicate the commission and financial crimes; (f) The adoption of measures which include coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes; (g) The facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; (h) The examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or group involved; (i) The determination of the financial loss and such other losses by government, private individuals or organizations; (j) Collaborating with Government bodies both within and

outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning. (i) the identification, determination of the whereabouts and activities of persons suspected of being involved in economic and financial crimes; (ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes; (iii) the exchange of personnel or other experts; (iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved; (v) maintaining data, statistics, records and report on persons, organization, proceeds, properties, documents or other items or assets involved in economic and financial crimes; (vi) undertaking research and similar works with a view to determining the manifestation, extent, magnitude and effect of economic and financial crimes and advising government on appropriate intervention measures for combating same; (k) dealing with matters connected with extradition, deportation and mutual legal or other assistance between Nigeria and any country involving economic and

financial crimes; 7: 1. The Commission has power to: – a. cause investigations to be conducted as to whether any person, corporate body or organization has committed an offence under this Act or other law relating to economic and financial crimes; b. cause investigations to be conducted into the properties of any person it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his source of income. 2. in addition to the powers conferred on the commission by this Act, the Commission shall be the coordinating agency for the enforcement of the provisions of: a. the Money Laundering Act, 2004; 2003 No.7,1995 No. 13. b. the Advance Fee Fraud and Other Related Offences Act, 1995. c. the Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Act, as amended; d. the Banks and Other Financial Institutions Act, 1991. As amended; e. the Miscellaneous Offences Act; and f. any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code. The above provisions which I have reproduced in extenso clearly show that the functions of the Commission are not limited to

government activities only but wherever fraud and economic crimes have been committed. By Section 13 (2) of the Act, the legal and prosecution unit is created with functions to prosecute offenders. I agree with the Court below that the Commission not only has the power to investigate whether any person has committed an offence under any law relating to economic and financial crimes but it also has the power to enforce such law by virtue of Section 7 (2) of the Act set out above. What I am saying is that the Commission has the power of investigation, enforcement and prosecution of offences relating to economic and financial crimes under the Act, including the Criminal Code and Penal Code. There is nothing in those sections to suggest that it is only in relation to government activities can the commission act. Specifically, Section 6 (b) of the Act empowers the commission to investigate financial crimes including advance fee fraud, which the appellant is charged with, money laundering, counterfeiting, illegal cash transfers etc. A person who has committed any of these offences against any other individual is subject to be investigated and prosecuted accordingly

whether government or private citizens activities. Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 provides: – 1. Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud a. obtains from any other person, in Nigeria or in any other country for himself or any other person; or b. induces any other person in Nigeria or in any other country, to deliver to any person; or c. obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act. 2. A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other Country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offences under this Act. 3. A person who commits an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years

without the option of a fine. The above provision is clear and there is no ambiguity at all. The Appellant having been charged with the offence of obtaining money by false pretences under Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, which the commission is empowered to investigate and prosecute, the argument by the learned counsel for the appellant that the offences must relate to the economic activities of government and its administration and not activities of private individuals is of no moment. The issue in this matter is gone beyond simple contract relationship between two individuals particularly with the allegation of issuance of a dud cheque when the appellant knew he had no money in the account.” Per OKORO, J.S.C.

There was nothing that could mislead any person into thinking the allegation is a Civil Claim. The transaction between the complainant and the Appellant could be grounded in a civil transaction but when fraud becomes part of the transaction, the person perpetrating it must be tried according to law. A civil transaction can also generate a crime in the process of execution and as long as the elements of

the offence are present, the law will apply.

That misunderstanding also made the Appellant’s Counsel to contend that agents and the mortgage company are necessary parties and witnesses and since they were not called, the Judgment cannot stand. A necessary or vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case, see SMART V STATE (2016) LPELR- 40728(SC). In other words, a witness who knows something significant about a matter is a vital witness. However, in a criminal trial, the prosecution is under duty to call essential witnesses to prove the ingredients of the offence and nothing more or less. As long witnesses called by the prosecution establish the offence, the failure to call any other witness is of no moment, see SHURUMO V STATE (2010) LPELR-3069(SC) which held:
“It is a settled principle of law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence or otherwise to give evidence on what he perceived. Once persons who can testify to the actual commission of the crime and the other

relevant ingredients have done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt, as stipulated by Section 138 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1999. See Obue v. State 1976 2 SC 141, Sadau v. State 1968 All W.L.R. 124 and The State v. John Ogbubunjo & Anor 2001 12 NWLR part 678 page 576. It is not incumbent on the prosecution to call every eye witness to testify, in order to discharge the onus placed on it by the law of proving a criminal case beyond reasonable doubt. As a matter of fact a single witness who gives cogent eye witness account of the incident will suffice. See ODILI v. State 1977 4 SC 1.” Per MUKHTAR, J.S.C
Therefore, the failure to call those the Appellant considers as vital witness was not fatal, if the Appellant considered then vital, when the prosecution failed to call them, he was free to call them to establish his defence. The prosecution is not under any duty to call witnesses for the accused person. The liberty to call witnesses is one that can be enjoyed by both sides. The Appellant did not consider those witnesses necessary for his case and he cannot

determine who the prosecution should call.

The Appellant also contended that there was no cause of action, cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right, however, that is within the context of a civil claim. In criminal matters there is nothing like cause of action. As long as the prosecution can prove its case against the accused, there is no further issue to be considered. It is absurd to import civil principles into a criminal trial. Civil and Criminal actions are two separate straight lanes that do not meet, except principles of evidence which apply to both. To expect a criminal trial to establish a cause action is unheard of and misplaced submission. The other issue is that the trial was not initiated by due process of law. The criminal trial was initiated under Criminal Procedure Code Law by an application to prefer a charge against the Appellant which is the procedure for initiating criminal trial in the High Court of the Federal Capital Territory, there is no way a criminal trial can be commenced as a civil claim. Luckily, the Appellant could not

justify it by any authority, be it case law or statutory. The argument is preposterous and must be discountenanced.

The Appellant alleged that the Preliminary Objection raised on the question of Jurisdiction and other related matters listed above was not addressed by the trial Judge. The Court is duty bound to address and determine all issue presented to it by the parties, that is a duty which if not fulfilled can amount to breach of fair hearing, see SIFAX (NIG) LTD V MIGFO (NIG) LTD (2018) LPELR-49735(SC) which held thus:
“Of course, it is easy for any Court that is faced with two different issues; which have the same outcome, to resolve one and throw away the other issue, however, Courts are enjoined to pronounce on all the issues raised before it – see Adegbuyi v. All Progressive Congress (APC) (2014) All FWLR (Pt. 720) 1374, (2014) LPELR-SC 24214, wherein Fabiyi JSC, stated- “The Court (i.e. the Court of Appeal) should pronounce on all issues as an intermediate Court. It should not restrict itself to one or more issues, which in its opinion, may dispose of the matter.” See also Brawal Shipping (Nig.) Limited v. F. I. Onwadike Co. Ltd (2000) FWLR

(Pt. 23) 1254, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SCNJ 508, wherein Uwaifo JSC, observed as follows- “It is no longer in doubt that this Court demands of, and admonishes the lower Court to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to miscarriage of justice and, certainly, will have that result if the issues not pronounced upon are crucial.” In this case, the Court below did what it had to do pronounce on both issues…” Per AUGIE, J.S.C
In this Appeal, failure of the Court to pronounce on the Preliminary Objection is out rightly wrong but it did not occasion miscarriage of Justice because the grounds of the objection were subsumed and subsequently over taken by the findings of the trial Court. They were strictly issues touching on civil procedure while this is a criminal trial. Superior Courts have admonished that such objection, even where it is out rightly annoying and unfounded, it deserves a determination.

The Appellant also contended further that necessary parties were not joined; it is surprising that the Appellant can canvass such arguments. For the umpteenth time, I say the trial was a criminal trial and the question of necessary parties cannot come into contemplation, the Appellant can initiate Civil Proceedings separately to sort out whatever issues he has with those parties. The question here was straight forward and by the evidence before the trial Court, it was proved.

He also alleged that the Judgment did not give a reason, in as much as every Judge has his personal style of Judgment writing, the Appellant cannot dictate on a particular format before he accepts that the Judgment is valid. A Judgment is expected to possess a number of elements, see AJIBOYE V FRN (2018) LPELR-44468(SC) which held thus:
“Having posited above, it needs to be stressed that Judgment writing is an art of itself and there could be numerous ways or methods of writing Judgment. The methods normally adopted by Judges may vary from one Judge to another. The variation could be as many as there are numerous Judges and each may have or may adopt the method he wishes to adopt. There is really

no particular style approved for Judges to adopt in Judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006)11 NWLR (pt.991)800. In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005)1 SC 60 the Court had this to say per Niki Tobi JSC (of blessed memory). “Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A Judge is not bound to follow the method or methodology stated by counsel in his brief. Once a Judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the Judge to the arguments and final order, an Appellate Court can not hold that the Judgment is not properly written.” In this instant case I have stated supra, that the learned Justice of the Court of Appeal who wrote the lead Judgment had in the said Judgment

summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the Respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the Judgment had by the said Judgment caused miscarriage of Justice on the Appellant which could be said to have vitiated the Judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009) 7 NWLR [pt.1139)148.” Per SANUSI, J.S.C
I have gone through the Judgment of the trial Court and I do not share the sentiments of the Appellant. The Judgment possesses all the required elements of a valid Judgment. A trial Judge who had the opportunity of seeing witnesses in the box is eminently qualified to believe or disbelieve a witness and in this case he gave his reasons for

disbelieving the Appellant. There were surrounding facts established before the trial Court to make any Court or Tribunal disbelieve the witness. From the manner he fraudulently handled the transactions concerning the sale of the house left little of him to be believed. I agree with the trial Judge in his findings.

The Appellant questioned manner of investigations done by EFCC, the investigative body of the Respondent and contended that it was shallow, the Appellant failed to appreciate that the concern of the EFCC was to establish whether a crime was committed and not to resolve the contractual dispute between the Appellant on one side and PW1 and PW2 on the other side.

Therefore the question of necessary parties does not arise in a criminal trial where every person accused takes his plea independent of the any other in a joint trial and faces his trial independently. The burden on the Respondent is to prove its allegations against any particular person named in the charge.

The Appellant challenged the evidence of prosecution witnesses on the contending that they are contradictory. It is trite that the contradictions that can disturb a Judgment

must be such that is material and fundamental to the real question in issue and thus must go to the root of the case so as to create a doubt, see IBEH V STATE(1997) 1 NWLR (Pt. 484) 632. Appellant submitted that the evidence of PW2 and PW3 is contradictory, this too is not borne by the record of Appeal and is not relevant or material to the real question in issue, this being a Criminal trial. The Appellant approached the appeal as if it is a Civil Proceeding. How PW2 concluded the earlier transaction with the mortgage finance company is not relevant to the criminal allegation that the Appellant obtained money from PW1 by false pretence over a property he had previously sold to PW2. I do not see any contradiction.

The Appellant canvassed a position different from what is on record, and it has been said over and over that address of counsel cannot take the place of evidence, what paragraph 9.02 of the Appellant’s Brief presents is not part of the record but a conjured set of facts by learned counsel to the Appellant which is a deviation from the purpose of a counsel address, see OGUNSANYA V STATE (2011) LPELR-2349(SC). The Appellant cannot also

canvass a case different from what transpired at the trial Court.

The trial Court made a specific finding on the evidence of the prosecution which was not discredited by the Appellant and held at pages 476 thus:
It is without doubt all the above ingredients of the offence of obtaining by false pretences have been established by the prosecution. The evidence adduced by the prosecution is cogent and credible. The defence could not discredit any of the prosecution witnesses. In the instant case, the pretence is that the defendant misrepresented to PW1, George Oyetola that he owns the property when he fully knew that he had earlier sold the property to PW2, Elder Johnson Ogunleye. The pretence emanated from the defendant himself and no other person. And in order to drive home his point of pretence, the defendant through his agent, Mr. Emmanuel, he presented to PW1, George Oyetola a search report to show that he is still the owner of the property. The defendant tendered in evidence the said search report. See Exhibit 7. The pretence made by the defendant to Mr. George Oyetola that he, the defendant owns the property is false hence the defendant knew that

he had sold the property to PW2. Elder Johnson Ogunleye and he had executed a deed of assignment, a Power of attorney, a letter of consent to collect the certificate of occupancy all in favour of Pw2, Elder Johnson Ogunleye.”

I cannot fault such findings and therefore agree with the trial Judge in the conclusion arrived at.
Flowing from above, the Appeal is unmeritorious and deserves a dismissal. The Appeal is hereby dismissed, the Judgment of the trial Court delivered on the 27th day of September, 2017 is hereby affirmed.

ABDU ABOKI, J.C.A.: I had the privilege of reading before now, a draft of the lead Judgment just delivered by my Learned Brother YARGATA BYENCHIT NIMPAR, JCA. His Lordship has prudently and diligently dealt with the sole issue that arose for determination.

I agree with his reasoning and conclusion that the Appeal lacks merit and ought to be dismissed. These findings and conclusions flowed from the evidence adduced at the trial. The facts leading to this Appeal and the reliefs sought have been adequately marshalled out in the lead Judgment and I need not repeat them.

I only add for emphasis that the offence of

obtaining money by false presence is codified under Section 1 of the Advance Fee Fraud and Other Related Offences Act 2006, which provides as follows:
1. (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
a) obtains from any other person, in Nigeria or in any other country for himself or any other person; or
c) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3) A person who commits an offence under subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not more

than 20 years and not less than seven years without the option of a fine.
It therefore follows that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are:
1. That there was a pretence.
2. That the pretence emanated from the accused person.
3. That the pretence was false.
4. That the accused person knew of the falsity of the pretence or did not believe in its truth.
5. That there was an intention to defraud.
See:
MUKORO V. FRN (2015) LPELR 24439 (CA)
ONWUDIWE V. FRN (2006) LPELR (2715) 1 at 55
ODIAWA V. FRN (2008) ALL FWLR (PT. 439) 436.
In MUKORO V. FRN (2015) LPELR 24439 (CA), it was held that
“… for the offence of obtaining by false pretences to be committed it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence. It is hornbook law

that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretences are: 1. That there was a pretence. 2. That the pretence emanated from the accused person 3. That the pretence was false. 4. That the accused person knew of the falsity of the pretence or did not believe in its truth. 5. That there was an intention to defraud. 6. That the property or thing is capable of being stolen. 7. That the accused person induced the owner to transfer his whole interest in the property. See ALAKE V. THE STATE (1991) 7 NWLR (PT. 205) 567 at 591, ONWUDIWE V. FRN (2006) LPELR (2715) 1 at 55 and ODIAWA V. FRN (2008) ALL FWLR (PT. 439) 436.”

In the appeal under consideration, it is borne out of the record that the Appellant, after collecting money from PW2, and signing three important documents in favour of PW2, i.e. deed of assignment, letter of consent to assign and letter of letter of authority to collect Certificate of Occupancy in favour of PW2. He was paid the purchase price in draft and other sums to also allow him offset the outstanding balance of the property under the mortgage arrangement.

Subsequently he approached PW1, sold the same house to him, initially the full price of N10 million but PW1 withdrew the cheque and split the payments. The Appellant did not disclose his earlier arrangement with PW2. Furthermore, he failed to pay the mortgage company. Therefore, by the time PW1 paid money to the Appellant, he had nothing to sell. In other words, he collected money from both PW1 and PW2 in the guise of paying over to the Mortgage company, but failed to do so on both occasions. He made PW1 to part with money which is property which is capable of being stolen. There was a pretence which was false and the Appellant knew so but did that with the intention to defraud because he knew of the previous arrangement but still induced PW1 to still transfer money to him. This, in my mind, has established the offence of obtaining by false pretence.

It is on account of this and the fuller reasons adduced in the lead judgment of my Learned Brother YARGATA BYENCHIT NIMPAR, JCA, that I also find the appeal to be devoid of merit and same is accordingly dismissed.
I abide by the orders contained in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

V. Adetusim, Esq. For Appellant(s)

A. Ugwelegbulam, Esq. with him, Ijeobalund Diribi, Esq For Respondent(s)